Government Support for Religion

• Author: Richard Moon
• Profession: Faculty of Law, University of Windsor
• Pages: 25-65

25

CHA PTER 2

GOVERNMENT SUPPORT

FOR R ELIGION

A. SUPPORT FOR RELIGIOUS PR ACTICE

Religious freedom is understood to have two dimensions: the freedom

to practise religion without state interference and the freedom from

state compulsion to participate in a religious practice. At an earlier time,

when most individuals adhered to a particular religious belief system,

these two dimensions were closely tied. In seeking to advance its con-

ception of religious truth or to ensure social stability through religious

conformity, a state might both compel the “correct” or dominant reli-

gious practice and prohibit “erroneous” practices. To the religious ad-

herent, because belief and practice play such a signif‌icant role in her

life, state compulsion to engage in other practices might seem deeply

invasive and even an interference with her chosen practices.1 In some

cases, the adherent might even consider his formal (and compelled)

participation in “erroneous” practices to be a form of blasphemy. How-

ever, the tie between these two dimensions of the freedom has been

loosened with the expansion of nonreligious or agnostic perspectives in

the community. Indeed, as we shall see, most of the recent challenges

against state support for a religious practice have been brought by non-

1 See Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 92, Mc-

Lachlin J: “To compel religious practice by force of law deprives the individual of

the fundamental right to choose his or her mode of religious experience, or lack

thereof.”

FREEDOM OF CONSCIENCE AND R ELIGION26

believers who object not to the preference of one religion over another

but instead to any form of state support for religion. Yet there may be

other links, in the contemporary context, between the two dimensions

of religious freedom. For example, the modern view that religion is a

private matter may support not just the exclusion of religion from pol-

itical decision making but also its insulation from state regulation. We

may be concerned that if religion lies outside the scope of politics, the

state may fail to take adequate account of the way that law and other

state action may affect (private) religious practices, particularly those

of minority groups.

In R v Big M Drug Mart,2 the Supreme Court of Canada said that the

test for determining whether section 2(a) has been breached is whether

the state act in question amounts to “coercion” of the conscience. Ac-

cording to Dickson CJ, no one should “be forced to act in a way con-

trary to his beliefs or his conscience” except when necessary to protect

important public interests or individual rights.3 The individual must be

free to practise her religion, and she must not be compelled to engage

in other religious practices. The issue in Big M Drug Mart was whether

the federal Lord’s Day Act,4 which prohibited a variety of commercial

activities on Sundays, breached section 2(a) of the Charter5 and, if it did,

whether this breach could be justif‌ied under section 1, the limitations

provision of the Charter. Chief Justice Dickson said that, in deciding

whether the law breached section 2(a), the Court had to consider not

just the law’s effect but also its purpose. He found that the Lord’s Day

Act breached section 2(a) because its “true purpose” was to compel a

religious practice — “the observance of the Christian Sabbath.”6

In defending the Act, the government had argued that the purpose

of the Sunday ban, at least in the contemporary context, was to create a

common pause day for workers. Chief Justice Dickson, though, noted

that the purpose of the law, at the time of its enactment, was to compel

or support Sabbath observance. In his view, the law’s “[p]urpose is a

function of the intent of those who drafted and enacted the legislation

at the time, and not of any shifting variable,” and so the Lord’s Day Act

could not be found to have a secular purpose based on changes in the

social context.7 Before the enactment of the Charter, the Lord’s Day Act

2 [1985] 1 SCR 295 [Big M Drug Mart].

3 Ibid at para 95.

4 Lord’s Day Act, RSC 1970, c L-13, as repealed by SI/88-227, 12 December 1988.

5 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, be-

ing Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

6 Above note 2 at para 136.

7 Ibid at para 91.

Government Suppor t for Religion 27

had been viewed as a valid exercise of the federal government’s power

to enact criminal laws under section 91 of the Constitution Act, 1867.8

However, the law’s validity under the federal criminal law power was

based on its religious purpose — and in particular its enforcement of the

Sabbath. Since the provinces have exclusive jurisdiction under the Con-

stitution to enact laws regulating business and trade activities within

their territories, any attempt by the federal government to defend the

law under the Charter on the basis that it advances a secular purpose,

such as the creation of a common pause day for workers, would under-

mine its constitutionality under the federal division of powers.

The Chief Justice went on to f‌ind that the law could not be sustained

under section 1, because its purpose was religious rather than secular:

“The characterization of the purpose of the Act as one which compels reli-

gious observance renders it unnecessary to decide the question of wheth-

er s. 1 could validate such legislation whose purpose was otherwise . . . .”9

A “religious” purpose, it seemed, could not be regarded as pressing and

substantial, and so it was unnecessary for the Court to address the other

elements of the section 1 test, as set out in R v Oakes.10 The consequence

of this f‌inding may be that section 1 has no role in those section 2(a)

cases in which the breach is based on state compulsion of (or support

for) religion.

While the Court in Big M Drug Mart formally described the wrong

addressed by section 2(a) as coercion in spiritual matters, the Court’s

f‌inding that the Lord’s Day Act breached section 2(a) seemed to rest on

a different understanding of the wrong. The Act did not require any-

one to honour the Sabbath, by attending church or reading the Bible or

ref‌lecting upon their spiritual commitments. It prevented individuals

from working but did not require that they worship or even rest.11 Chief

Justice Dickson, though, adopted a broad view of religious compulsion:

8 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

9 Above note 2 at para 142.

10 [1986] 1 SCR 103 [Oakes]. The Oakes test has several elements. A restriction on

a right or freedom must have a substantial and pressing purpose. The restriction

must be rationally connected to that purpose, and it must restrict the right or

freedom no more than is necessary to advance that purpose. And, f‌inally, the ac-

tual costs of the restriction to the right or freedom must not outweigh its benef‌its.

A law that advantages the practices of one religious group, even if not intended

to support or prefer that group, may sometimes be viewed as a restriction on the

practices of other groups — a burden on their religious practice. See, for example,

R v Edwards Books and Art Ltd, [1986] 2 SCR 713 [Edwards Books], which is dis-

cussed in Chapter 3.

11 This was the view of the majority of the Supreme Court of Canada in Robertson

and Rosetanni v The Queen, [1963] SCR 651, a Canadian Bill of Rights case that